The first mortgagee can resist the claim by the second mortgagee by relying upon and using the prior mortgage as a defence or a shield, even if the period of limitation of the earlier mortgage had expired.

Gentle, J.

1. The facts which are relevant to this Second Appeal are as follows: One Chikayi Ammal was the owner of a piece of immovable property. In 1919 she mortgaged it in favour of the deceased husband of the third defendant in the suit. Chikayi Ammal later sold this property, or the equity of redemption to one Chinnathayi, the deceased father of defendants 1 and 2. In 1920 Chinnathayi executed a second mortgage of the same property in favour of the plaintiff. It is convenient to refer to the third defendant as the 1st mortgagee, the plaintiff as the 2nd mortgagee and the first and second defendants as the mortgagor.

2. In 1926 the first mortgagee filed a mortgage suit upon the mortgage of 1919 and in that suit did not implead the second mortgagee as a party. In 1930 a mortgage decree was passed and in due course the mortgaged property was put up for sale by auction and was purchased at the sale by the first mortgagee, who, since that date has been in possession of the mortgaged property. There is no suggestion that the proceeds of the sale amounted to a sum which exceeded the amount due in respect of the first mortgage. In 1934 the present suit was filed; the plaintiff being the second mortgagee, impleading the first mortgagee as the third defendant.

3. In the trial Court the learned District Munsif decreed the suit in favour of the second mortgagee holding that the earlier decree had in no way affected his rights and that as the 12 year period of limitation in respect of the first mortgage had expired by the date of the institution of the second suit, the first mortgagee could not avail herself of its provisions and could not seek to have her mortgage redeemed by the 2nd mortgagee and was not entitled to remain in possession of the property against the decree which was passed in favour of the second mortgagee in the suit. The lower appellate Court reversed the decision of the learned District Munsif. It is against the reversal in the Court below that this appeal has been preferred.

4. Order 34, Rule 1, Civil Procedure Code provides as follows:

Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

5. As stated above the first mortgagee did not follow the provisions of the above rule and failed to join in the first mortgage suit the second mortgagee. Such a failure to join a subsequent mortgagee does not disturb the rights of the later mortgagee. The decree and the subsequent sale do not affect those rights which a subsequent mortgagee has under his mortgage. What are those rights? The second mortgagee is entitled to sue upon his mortgage and having obtained a decree and the mortgage debt remaining unpaid, the hypotheca can be sold and, subject to the rights of the prior mortgagee, the proceeds utilised to pay off the second mortgage debt. The first mortgagee has a prior right over the second mortgagee in regard to the satisfaction of her mortgage debt out of the mortgaged property. The failure to join the second mortgagee in the suit, by the first mortgagee does not give to the former and further rights which he did not possess so as to entitle the second mortgagee to ignore the existence of the first mortgage.

6. In the present case the first mortgagee, having failed to join the second mortgagee in the suit and having obtained a decree and purchased the property in the subsequent auction sale and now being in possession, sets up her prior mortgage against the claims by the second mortgagee for possession and sale of the mortgaged property. On the other hand, the second mortgagees contention is that since the period of limitation in respect of the first mortgage expired before the date when the second mortgage suit was filed, the first mortgagee cannot rely upon the first mortgage deed. It must be borne in mind that the first mortgagee is not suing upon or setting up this earlier